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2019 DIGILAW 559 (KER)

Cauvery Build Tech (P) Ltd. v. Aneesh James

2019-07-12

MARY JOSEPH

body2019
ORDER : These revisions are directed against the order passed by the Judicial First Class Magistrate Court, Kalamassery in Crl.M.P.Nos.304/2017 and 305/2017 on 30.3.2019. The impugned order passed in the respective petitions are extracted hereunder: “Complainant absent. No representation. Name of complainant and counsel called in open court. No representation. Hence, complaint is rejected.” 2. The aforesaid C.M.Ps are filed by the complainant to condone the delay occurred in preferring complaints to launch prosecution under Section 142 of the Negotiable Instruments Act, 1881 (for short 'the N.I Act'). Since the petitions seeking condonation of delay were dismissed, consequently the complaints were also rejected by the impugned order. It appears from the order extracted above that the complainant and his counsel were absent on a particular day and the petitions posted for hearing for the day were dismissed. The court concerned ought to have passed orders on merits in the petitions pending consideration. Rather than doing so, those were dismissed. The subordinate courts ought to have borne in mind that they are sitting not to curtail a party's legitimate right to prosecute a case in a manner wrecking vengeance. In the case on hand the court below ought to have granted a second chance for appearance of the complainant or his counsel. 3. Moreover, in the case on hand the circumstance was not of the nature where the court was in darkness or restrained from proceeding further due to absence of the complainant before the court in person. The order reveals absence of the counsel of the complainant also. But the court must be vigilant while denying the valuable right of a person to prosecute the case that the absence of the complainant or his counsel may be due to a genuine reason. For that, providing with a second opportunity to appear, explain and contest is important. In the case on hand though the complainant's presence was not warranted, the court has observed that also as a ground while declining him an opportunity to prosecute his case. The plight of the party in the context must also be born in mind while doing so. The court has not applied it's mind to the previous proceedings to see whether the complainant is a person vigilant in prosecuting his case. Whether character of the complainant is contumacious could only be discerned from the context of the case on previous occasions. The court has not applied it's mind to the previous proceedings to see whether the complainant is a person vigilant in prosecuting his case. Whether character of the complainant is contumacious could only be discerned from the context of the case on previous occasions. No reference is there in the order about previous conduct of the complainant. 4. For the foregoing reasons, this Court is inclined to grant one more opportunity to the complainant to prosecute his case on merits. For the purpose the impugned orders are required to be set aside. In the result, both Criminal Revision Petitions are allowed. The impugned orders are set aside. The court below shall restore Crl.M.Ps stand dismissed and complaints stand rejected, back to file. Crl.M.Ps shall be heard and orders passed in those, on merits. Prior to hearing Crl.M.Ps the court shall cause notice to be served on the counsel representing the parties to the prosecution before that court. In the event of failure of the parties or their counsel to appear on the day scheduled for hearing Crl.M.Ps, the court shall act and pass orders in accordance with law.